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Wendt v. United States

April 16, 2009

JAMES T. WENDT, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Reagan, District Judge

MEMORANDUM AND ORDER

On January 14, 2009, the undersigned Judge dismissed Wendt's petition to vacate, set aside or correct sentence under 28 U.S.C. § 2255. (In an underlying criminal case, Wendt was indicted for -- and pled guilty to -- possessing cocaine with the intent to distribute it, in violation of 18 U.S.C. § 841.) Wendt moved for reconsideration on February 9, 2009, which this Court denied on March 18, 2009.

The docket sheet reflects no appeal filed by Wendt to date, but on April 10, 2008 he did move for a certificate of appealability. In that motion (Doc. 20), Wendt asserts that a certificate of appeal should issue because "reasonable jurists would find the District Court's assessments, in denying both [the] § 2255 motion and Rule 59(e) motion ... debatable and wrong."

Wendt does need a certificate of appealability to proceed with an appeal from this Court's § 2255 ruling(s). 28 U.S.C. 2253(c)(1)(B). However, the undersigned Judge concludes that Wendt is not entitled to a certificate of appealability, because he lacks a substantial constitutional question. Stated another way, Wendt has not made a "substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2).

For the reasons identified in this Court's Order denying § 2255 relief, the undersigned District Judge concludes that Wendt has not made the requisite showing to support issuance of a certificate of appealability and therefore DENIES his motion (Doc. 20).

IT IS SO ORDERED.

MICHAEL J. REAGAN United States District Judge

20090416

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